2018 (6) TMI 8 - AT - Service Tax

Rectification of mistake - certificate of Chartered Accountant was available but not produced - unjust enrichment - Whether document which was available but not produced before the Tribunal, can be considered by the Tribunal as rectification of mistake? - time limitation - Held that - The issue of limitation has specifically been considered in para 5.2 of the order and thus there is no mistake as far as the issue of limitation. Non-production of certificate - Held that - There is nothing in the said certificate of the Chartered Accountant to negate the arguments. In these circumstances, even if the certificate was produced, it could not have made any difference to the final order. ROM Application dismissed.

Summary

Issues: Rectification of mistake application regarding Tribunal's order on unjust enrichment and limitation.

In the case, M/s. Central Warehousing Corporation filed a rectification of mistake application concerning the Tribunal's order dated 27.7.2017. The applicant argued that the issue of unjust enrichment was not adequately addressed in the order as the appellant had not produced a Chartered Accountant certificate during the Tribunal stage, despite its availability. The applicant relied on a previous Tribunal decision and a Bombay High Court case to support the argument that a document available but not produced can be considered for rectification. Additionally, the issue of limitation was raised by the applicant. The Assistant Commissioner resisted the application. The Tribunal examined the submissions and found that the issue of limitation had already been considered in the order, concluding that there was no mistake regarding this issue. The Tribunal also reviewed a certificate provided by the appellant, which detailed the service tax payments made and the subsequent refund claim. The certificate indicated that the burden of the amount paid was borne by the appellant and not passed on to any other person. The Tribunal referred to specific paragraphs from the previous order which discussed the unjust enrichment issue and the absence of the promised Chartered Accountant certificate. The Tribunal determined that even if the certificate had been produced, it would not have impacted the final order. Consequently, the rectification of mistake application was rejected, and the decision was pronounced in court on 8.5.2018.